‘Don’t Ask Don’t Tell’ Ruled Unconstitutional — the Takeaway

September 10, 2010

It’s been quite a summer for the Federal Courts as they’ve stepped in yet again on behalf of equal rights for gay Americans. After a Federal District Court in San Francisco ruled Proposition 8 was unconstitutional last month, a Federal District Court in Riverside, CA ruled last night that the U.S. military’s “Don’t Ask, Don’t Tell” policy is also unconstitutional.

U.S. District Judge Virginia Phillips ruled that Don’t Ask Don’t Tell violates the Fifth and First amendments. As reported by CNN, Phillips ruled that the policy “distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted.” (In lay terms, this means that gay and lesbian service members can’t just not have sex with the same gender, but they can’t ever talk about their partners, watching “Will and Grace,” listening to Lady Gaga, or reading the Advocate without fear of being fired.)

She said that Don’t Ask Don’t Tell not only fails to help the military but that its “restrictions on speech not only are broader than reasonably necessary to protect the Government’s substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals.”

Get ready for the blow back that another “activist judge” has overruled the “will of the people,” but don’t believe it for a second.

Repealing DADT has long enjoyed more public support than, say, gay marriage. Roughly 80 percent of all Americans, 70 percent of Iraq and Afghanistan veterans, and even 58 percent of self-identified conservatives support repealing the law.

And yet, despite these overwhelming majorities among just about every constituency, the democratic leaders of the legislative and executive branches cannot bring themselves to throw their full support behind repeal. Senate majority leader Harry Reid has so far refused to promise he will schedule a floor vote to repeal the policy before the mid-term elections, which is making the bill’s opponents anxious that it could wait to come up in the lame-duck session or, worse, languish until a potentially Republican congress takes over.

President Obama, meanwhile, has failed to lead on this issue, taking a heel-dragging pace and even employing an insulting survey of current military asking them how they feel about serving with the gays.

Meanwhile, the Log Cabin Republicans filed suit, and asked the judicial branch of the government to defend gays’ constitutional rights, which they have.

Curiously, as Joe My God reported, OneMan-OneWoman.Org, a homophobic spin-off of the National Organization for Marriage, tweeted last night “There is no need to prohibit gays and lesbians from openly serving in the Armed Forces. They should have the opportunity to serve.”

The case could be appealed, but as Politico pointed out, Judge Phillips wrote that the Obama Administration had really put up no defense of this case: “[D]efendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the act.”

When Judge Walker struck down Proposition 8 in Perry vs. Schwarzenegger, Governor Schwarzenegger saw it as his constitutional duty to simply do nothing. He didn’t appeal an unconstitutional law. Will President Obama similarly have the guts to just do nothing, not appeal, and let Judge Phillips create a “a permanent injunction barring [Don’t Ask Don’t Tell’s] enforcement”?